Service Wide Occupational Health and Safety Committee
- What criteria are used in appointing a competent person to undertake a work place violence investigation?
Part 20.9 (1) of the Canada Occupational Health and Safety (COHS) Regulations sets out the three (3) criteria that exist to be deemed a competent person for the purposes of Work Place Violence Investigations.
A Competent person means a person who:
- is impartial and seen by the parties to be impartial;
- has knowledge, training and experience in issues relating to work place violence; and
- has knowledge of relevant legislation.
It is recommended that the employer, in consultation with the Policy Health and Safety Committee, Workplace Health and Safety Committee or Representative as applicable, establish a list of Competent Persons ahead of time that can be drawn from as needed.
- What does impartiality mean?
Impartiality refers to the fact that all parties to the complaint must agree that the competent person is fair, just and can treat all parties equally. It is to be made clear that “parties” to the complaint do not include witnesses, but rather the individuals directly involved in the incident or situation of work place violence.
Furthermore, no party has the right to frustrate the process of identifying a competent person, as the overall objective, which should be kept in mind throughout the process, is to conduct an investigation. As such, there may be legitimate occasions to object to the proposed competent person, which may or may not include, based on the circumstances of the case, imposing the naming of a competent person from within the same organization. However, should an issue of impartiality arise, it is recommended that an open dialogue take place to identify what the parties may be looking for in the naming of an impartial competent person. Should it appear clear that a party is indeed trying to frustrate the process, then such party may be asked to demonstrate/provide a rationale for the objection to the appointment of the competent person in question. The reasons for objecting to the selection of a Competent Person need to be well documented.
Finally, identifying a “competent team” with Employee and Employer representation can often alleviate the issue of impartiality. This does not remove the ability of any of the parties involved to question the impartiality of the “competent team”.
- What type of knowledge should the “competent person” have?
When the employer is appointing a competent person, knowledge should include, but not be limited to, knowledge of the: Canada Occupational Health and Safety Regulations, the Canada Labour Code – Part II – Occupational Health and Safety, the Safety and Health Committees and Representatives Regulations, and how to write and conduct a root cause analysis.
Specific knowledge of “Preventative Measures” should be considered as one cannot make sound recommendations to prevent a reoccurrence of work place violence should they not be familiar with the necessary factors, assessment and prevention measures as outlined in the COHS Regulations.
- What are the essential elements of a Competent Person Investigative Report?
The components of a fulsome, but concise investigative report should ideally include:
A timeline approach with respect to the history and background of the incident can often assist in developing an objective analysis.
- A summary of the investigative findings;
- An analysis of the root cause for the incident including enough evidence to support the identified root cause; and
- Recommendations for preventative measures.
- What type of involvement should Policy Committees have with respect to Violence Prevention in the Work Place?
The Canada Occupational Health and Safety (COHS) Regulations are clear that policy committees or, if there is no policy committee, the work place committee or the health and safety representative should be consulted and participate in all areas related to Violence Prevention in the Work Place from developing a policy and procedures to investigations and training. This requirement includes consultation on the selection of a competent person.
- Do parties to the complaint have the right to “support” during the process?
Any party to the complaint has the right to support during the process, including but not limited to, Bargaining Agent support.
- Part 20.9 (2) of the COHS Regulations states that: “If an employer becomes aware of work place violence or alleged work place violence, the employer shall try to resolve the matter with the employee as soon as possible”. What does this mean?
Early resolution with respect to violence in the work place refers to management meeting with the party to the complaint to determine the nature of the issue and identify whether or not there may be an opportunity to resolve the matter. The review should focus on determining how the employee’s concern can best be resolved and the measures that may be necessary to prevent a re-occurrence as quickly as possible.
Unless it is “plain and obvious” that the allegations do not relate to workplace violence, it must be assumed that it does, and the requirements of Part XX of the COHSR must be followed. This would include appointing a competent person under subsection 20.9(3) to investigate any unresolved complaints of workplace violence.
- I am seeking a personal remedy as result of the violence in the work place I experienced. Should I be filing a complaint in accordance with Part XX of the COHS Regulations?
The intent of Part XX of the COHS Regulations is to investigate the incident in order to identify what controls can be put in place to prevent a recurrence of the work place violence (i.e. institute preventative measures). There is no personal remedy provided under Part XX.
Should you be seeking personal remedy, there are many other avenues. It is recommended that one contact their HR representative or their union representative for guidance.